Whether the U.S. Supreme Court's current interpretation of the First Amendment is correct or not, it does – for the time being anyway – represent the law of the land. By the Supreme standard articulated in Citizens United v. Federal Election Commission, the union-busting bill passed by the Wisconsin Legislature and signed into law by Governor Scott Walker is unconstitutional on free speech grounds.
To this day nearly every news story about the legislation includes a line about how the governor claims it was needed to balance the budget. But Walker has publicly acknowledged on more than one occasion – including congressional testimony – that the law isn't about budget balancing and doesn't save the state any money. In an infamous recorded telephone conversation, he made it clear it's about breaking unions.
Indeed, the law will do just that. The law not only requires annual union certification elections. It requires a majority of all bargaining unit members to recertify the union, not just a majority of those who attend the annual meeting. Can you imagine what would happen if all our elections were conducted that way? If it were no longer enough just to get the most votes but instead candidates needed to win the support of a majority of all eligible voters, hardly anyone would ever be elected to any public office in this country.
Forced to jump through this hoop year after year, it is a foregone conclusion that some unions will at some point fail and will be decertified. Those that repeatedly survive will still be badly weakened because of new restrictions the law places on how unions may raise money from their members.
This is where the First Amendment comes in. The Supreme Court has ruled that money is speech and, most recently in Citizens United, ruled that any limit on election spending by corporations chills their speech and is an unconstitutional infringement on First Amendment rights.
Writing for the court majority, Justice Anthony Kennedy proclaimed that the federal Bipartisan Campaign Reform Act's restriction on corporate election spending “permits the Government to ban the political speech of millions of associations of citizens" and said "(m)ost of these are small corporations without large amounts of wealth." Kennedy went on to call it "censorship" that was "vast in its reach."
Kennedy continued: "By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests."
He further wrote, "The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public" and went on to say "certain disfavored associations of citizens – those that have taken on the corporate form – are penalized for engaging in . . . political speech."
All of which led to this conclusion: "When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful."
Walker's law is vast in its reach. Its purpose and effect is to use the full power of state government to kneecap certain disfavored associations of citizens. It hinders their ability to raise funds to engage in political speech.
By the U.S. Supreme Court's own line of reasoning, Walker's law is censorship. It is unlawful. It violates the First Amendment.